AlterNet.org: Lawrence Lessighttps://www.alternet.org/authors/lawrence-lessig-0
en"They Know We Know It." Get Politicians on the Record About Corruptionhttps://www.alternet.org/news-amp-politics/they-know-we-know-it-get-politicians-record-about-corruption
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<div class="field field-name-field-teaser field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">We need to get every member of the House and Senate on the record about the force &quot;that threatens to steal our democracy itself.&quot;
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<!--smart_paging_autop_filter--> <p> </p><p>"There's another challenge that we must address and it is the corrupting force of the vast sums of money necessary to run for office. The unending chase for money I believe threatens to steal our democracy itself."</p><p>No, that's not a quote from the President Obama's State of the Union address. But it is from a recent speech by the newest member of his cabinet: John Kerry.</p><p>We both were struck by Kerry's candidness and eloquence on the matter of money in politics as he gave his farewell address to the Senate, where he has spent the last 28 years of his life.</p><p>We were so struck, in fact, that we - and our good friends at HuffPost, including Arianna - need your help.</p><p>We're calling it the <strong>On the Record Project</strong>.</p><p>We need to get every member of the House and Senate on the record about the force "that threatens to steal our democracy itself."</p><p>We can no longer afford to have our public officials remain silent on this crucial issue. They should no longer be allowed to duck it, or to act is if there is no mandate to fix the problem.</p><p>In fact, the mandate couldn't be clearer. Year after year, poll after poll has shown that we, the people, are sickened by the way in which money corrodes and corrupts our democracy. In a Gallup poll last July, 87% of us said that reducing government corruption should be an "extremely important" or "very important" priority for the president. It ranked second on a list a dozen - from improving education to strengthening national security -- just below job creation (which came in #1, at 92%).</p><p>Corruption. It's a strong word. But that's how vast majorities of us see it, and now Secretary of State John Kerry confirmed that we're not nuts: "I've used the word 'corrupting' and I want to be very clear about it. I mean by it not the corruption of individuals but a corruption of a system itself that all of us are forced to participate in against our will: The alliance of money and the interests that it represents, the access that it affords to those who have it at the expense of those who don't, the agenda that it changes or sets by virtue of its power is steadily silencing the voice of the vast majority of Americans who have a much harder time competing or who can't compete at all."</p><p>We Americans are not the type of people who have ever allowed our collective voice to be steadily silenced. Other countries may have a higher tolerance for such muting of the masses, but not us. And it's time to speak up, and to get every one of our elected representatives to speak up, too. Do they agree or disagree with 87% of us? Do they think John Kerry's reflections, informed by three decades of service on Capitol Hill, are accurate or not?</p><p>To help manage the On the Record Project, HuffPost has set up a system for all of us to help get every member of Congress on the record.</p><p>It's simple enough, but will require some guts and persistence to pull it off.</p><p><br /><strong>Here's what we need you to do:</strong></p><p><strong>Go to a gathering that your representative or senator is attending and ask him/her:</strong></p><blockquote>In his farewell speech, John Kerry said that the "unending chase for money" in politics has led to the "corruption" of the political system. He said everyone knows it, but nothing is done. Yet the Supreme Court, with its Citizens United decision, argued that money doesn't corrupt. What is your view on this? Do you believe that the "unending chase for money" has corrupted politics?</blockquote><p><strong>Record their answers to both questions on video.</strong> Use your cell phone or whatever device you want and then post it with the other videos so that we have an exact record of what they said.</p><p><strong>Upload your audio</strong> to <a href="http://soundcloud.com/upload" target="_hplink">SoundCloud</a> and tag it #campaignmoney</p><p><strong>Or, send us video clips</strong> through <a href="http://www.sendspace.com/" target="_hplink">SendSpace</a>.</p><p>Or, <strong>send files to us directly</strong> at <a href="mailto:openreporting@huffingtonpost.com">openreporting@huffingtonpost.com</a></p><p>The goal of this project is not merely to get every one of them on the record, but then to use what they say to help propel them to act - to reform the system -- or to hold them accountable when they either fail to act or fail to acknowledge the crisis of corruption.</p><p>Acknowledgement of an illness is the gateway to wellness. As it is with alcoholics, the first step to sobriety is publicly admitting the addiction.</p><p>And on that front, once again John Kerry was very clear: "We should not resign ourselves, Mr. President, to a distorted system that corrodes our democracy, and this is what is contributing to the justifiable anger of the American people. They know it. They know we know it. And yet nothing happens. The truth requires that we call the corrosion of money in politics what it is - it is a form of corruption and it muzzles more Americans than it empowers, and it is an imbalance that the world has taught us can only sow the seeds of unrest."</p><p>Indeed, they do know it. And they do know that we know it. And, yet, nothing is happening in Washington.</p><p>At least, until now.</p><p>Let's get every politician to take a stand - either for the status quo or against it -- so that we know who's on what side. Doing so will help all 87% of us democracy-loving Americans draw the battle lines for the future.</p><p>Please, join the cause. Become a part of the On The Record Project now.</p><p><em>Questions on this project? Let us know in the comments below. We will update <a href="http://corruptionismyissue.org/hp/sorter.php" target="_hplink">this scorecard</a> with your responses. </em></p> Thu, 14 Feb 2013 12:30:00 -0800Lawrence Lessig, Nick Penniman, Huffington Post795065 at https://www.alternet.orgNews & PoliticsNews & PoliticsdemocracycorruptionThe Great Kagan Supreme Court Debatehttps://www.alternet.org/story/146857/the_great_kagan_supreme_court_debate
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<div class="field field-name-field-teaser field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">Two leading legal experts debate the pros and cons of Obama&#039;s nomination of Elena Kagan.</div></div></div><!-- All divs have been put onto one line because of whitespace issues when rendered inline in browsers -->
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<!--smart_paging_autop_filter--><p><em>The following is a transcript of Amy Goodman's Democracy Now! interview on Wednesday with Glenn Greenwald and Lawrence Lessig. It has been edited for length and clarity.</em></p>
<p><b>Amy Goodman:</b>If confirmed, the fifty-year-old Elena Kagan would be the Court’s youngest member. She would become the fourth female Supreme Court justice in US history and the third on the Court’s current bench. She would also be the first justice in nearly four decades without any prior judicial experience.</p>
<p>Elena Kagan’s nomination has divided progressives in part because so little is known about her judicial views. Her nomination sparked a heated debate between two noted legal commentators: Harvard Law professor Lawrence Lessig and constitutional law attorney and <a href="http://www.salon.com/news/opinion/glenn_greenwald/index.html">Salon</a> blogger, Glenn Greenwald. Glenn first appeared on <i>Democracy Now!</i> last month making his case against Kagan’s nomination. Then on Monday, he was on our show again and then <a href="http://maddowblog.msnbc.msn.com/_news/2010/05/11/4268531-fight-lessig-greenwald-needs-to-check-his-hyperbole-response-youre-just-wrong">interviewed by Rachel Maddow</a> that night on MSNBC. Right after Greenwald, Maddow interviewed Lawrence Lessig, who criticized what Greenwald had to say. This led to them both penning articles criticizing each other, defending their position on Kagan’s nomination. Read <a href="http://www.huffingtonpost.com/lawrence-lessig/ok-so-now-im-a-liar_b_571974.html">Lessig's here</a>, <a href="http://www.salon.com/news/opinion/glenn_greenwald/2010/05/11/kagan/index.html">Greenwald's here</a></p>
<p>Now they join us together at the same time for a debate on Elena Kagan. Harvard Law professor Lawrence Lessig is joining us from a studio in Boston, and Salon blogger Glenn Greenwald is on Skype with us.</p>
<p>We welcome you both to <i>Democracy Now!</i> Let’s start with Professor Lessig. Why do you support Elena Kagan as the next Supreme Court justice?</p>
<p><b>Lawrence Lessig:</b>Well, I think that from the experience I’ve had with Elena, which is now more than twenty years, I think that she has exactly the right values and exactly the right skill that this justice will need. This is the fourth justice in the non-conservative or non-right-wing bloc of this right-wing court. And what that means is she needs to have the ability to persuade the fifth, so that we can get five votes for values and positions that we believe in. And I think what she’s demonstrated more than anything else is she has exactly that skill.</p>
<p><b>Amy Goodman:</b>Glenn Greenwald, your thoughts about Elena Kagan?</p>
<p><b>Glenn Greenwald:</b>Well, it’s interesting. I’ve been arguing for essentially a month now that the principal problem with her is that it’s impossible to know what she thinks about virtually anything. She has a few law review articles she’s written, a couple of snippets of opinions she’s expressed, but, by and large, she’s a blank slate. We don’t know what she’s going to do on the Court. We have no clue.</p>
<p>And what’s interesting is, since her nomination was announced, if you look at venues that are very sympathetic to the President, the <i>New York Times</i> editorial page yesterday said that he might think that she’s a good person, but the public has no way of knowing that, because she’s spent twenty years hiding her philosophy. The columnist David Brooks said that she’s the kind of person who placed career advancement above any commitment to any opinions, and you can scour her speeches to find opinions and come up empty. Tom Goldstein, who’s a huge booster of hers, said that she’s the nominee about whom the least is known since at least David Souter, and we know the huge surprise that he produced. And even her friend Jeffrey Toobin in <i>The New Yorker</i>, who knows her for twenty years, said he’s happy for her personally, but he can’t comment on her nomination, because in all that time he’s never heard her express any opinion about any political or legal issue of consequence.</p>
<p>And what little we do know is somewhat troubling in some issues. On other issues, it’s actually encouraging. But I think the nomination process has to reveal a lot more about what she thinks and believes before anyone can make a rational assessment.</p>
<p><b>Goodman:</b>Well, what about that, Professor Lessig, of her being a blank slate or hiding her views over these years?</p>
<p><b>Lessig:</b>Yeah, so, it’s just wrong to say that she’s been hiding her views. What she’s been doing is doing her job. And I think what we need is a little bit of perspective here. You know, what’s most important, in my view, about what the President has done here is he’s appointed a non-judge, or he’s nominated a non-judge to the Supreme Court. And that’s extremely valuable. This Court is filled with former judges. And if there had been a non-judge, if there had been Justice O’Connor, who had been a politician before, or even a Justice Rehnquist, this Court would not have made its blunder in <i>Citizens United</i>, because it would have had a broader perspective and understanding about the political system.</p>
<p>Now, every non-judge that you appoint, Glenn Greenwald could make exactly the same criticisms of. We didn’t know anything about Lewis Powell, we didn’t know anything about Justice White, we didn’t know anything about Justice Douglas, we didn’t know anything about Justice—Chief Justice Rehnquist, when they were appointed, because all of them had had an experience that was not the experience of writing opinions in a wide range of cases that every single judge does. Now, we can decide we should never have anybody except judges on the Supreme Court, but I think that would be a big mistake.</p>
<p>Now, I don’t know about Jeffrey Toobin, but I spent four years sitting across the table from Elena Kagan three days a week listening to her spout very strong and, in my progressive views, very correct views about a wide range of constitutional issues. She’s written substantively about the First Amendment, which is an extremely important part of the Supreme Court’s jurisprudence. And contrary to Glenn’s characterization, her views about the president’s power, in the presidential administration article, are views that liberals and progressives should embrace, because they are exactly contrary to the view of the right-wing Bush-Cheney doctrine that says the president can do whatever he wants, Congress be damned. Her view is the president has this power, but only so long as Congress grants that power to the president.</p>
<p>So I think she has given us clear views in important areas. But more than that, she has spent her time, not blogging, not twittering, not trying to be out there in the forefront of every single legal issue, just doing her job, and doing it extremely well. She was an enormously successful dean, and she’s been enormously successful in every single job she’s had. I think progressives should be rallying around this woman and not making it seem like this is some kind of outrage that she has not spent twenty years writing opinions on a federal bench.</p>
<p><b>Goodman:</b>Glenn Greenwald?</p>
<p><b>Greenwald:</b>Nobody thinks that only judges should be appointed to the Supreme Court. That is a total straw man. You don’t need to be a judge to leave behind a record of what you believe about the great political and legal issues of the day. We’re talking to somebody right now named Larry Lessig, who has never been a judge, and yet has a very extensive record of scholarship to enable persons to know what he thinks about all of these matters. He’s here debating it now. Look at the alternatives that people were suggesting to Elena Kagan, numerous non-judges such as Harold Koh or Pamela Karlan, professors who, unlike Kagan, have a very lengthy record of advocacy and involvement in political and legal issues of the day. Not only has she never been a judge; she’s never really been a lawyer until she was solicitor general, in terms of being in court. So it’s an absolute blank slate.</p>
<p>Things that we do know about her—I mean, we can sit here and try and tell the audience what she really meant in that 2001 presidential administration article that’s very esoteric. We can each say different things. Just look at what people who aren’t a longtime friend of hers, like Professor Lessig or me, an opponent of her nominee, said. Neal Katyal, who’s her deputy solicitor general, wrote a law review article criticizing parts of what she wrote and said that, in essence, that she embraced parts of what—the precursor to the Bush-Cheney unitary theory. That’s what he said. William West, one of the nation’s foremost experts in administrative law and a professor of law at the University of Texas, said that it showed she’s a great fan of presidential power.</p>
<p>And in her confirmation hearing as solicitor general, she absolutely went beyond—went beyond—the state of the law as the Supreme Court has defined it and said that the president has the authority to detain as enemy combatants not just people detained on the battlefield, but also far away from any battlefield—she said the Philippines was the example she agreed to—and not just who are engaged in hostilities, but who are even providing material support or financing to terrorist groups. That is a very broad view of the president’s authority that is far beyond what the Supreme Court has said.</p>
<p>And, you know, the thing that I would ask Professor Lessig is, you know, you’ll notice that he’ll say things like “I know her. She’s a great progressive. Progressives should be excited.” Look at the most controversial issues that the Supreme Court has dealt with—<i>Roe v. Wade</i>, <i>Bowers</i>—overturning <i>Bowers v. Hardwick</i>, <i>Citizens United</i>, <i>Bush v. Gore</i>, the <i>Hamdi</i> and <i>Hamdan</i> decisions that define the scope of executive power. I’d ask him to identify anything that she said publicly that would give us evidence as to how she would have ruled on those issues. What did she say, and how does it reflect how specifically she would have ruled in those cases?</p>
<p><b>Goodman:</b>Well, Professor Lessig, what about these issues of executive power, and specifically these cases that Glenn Greenwald has raised?</p>
<p><b>Lessig:</b>Well, so, what did she say about <i>Citizens United</i>? She argued <i>Citizens United</i> for the government. She developed in that argument what I think is exactly the right justification for Congress to have the authority to balance the power of these enormous special interests, something that I know Glenn has written powerfully about. She stated that argument, and I believe she believes it.</p>
<p>Now, Glenn is right. The only basis I have for knowing what her views on each of these cases are is the context in which I’ve seen her discuss it, which has been the context of being a law professor. Now, she says what we need—Glenn says what we need is a law professor like me. We don’t need a law professor like me. And though I would support Pam Karlan or Harold Koh, I think Pam Karlan and Harold Koh are not the kind of justice that we need right now. I think when we are talking about the fifth justice, the justice who solidifies the majority that the non-right-wing wing of the Supreme Court has, then I’m going to be all for somebody like Pam Karlan, who has been an outspoken progressive pushing ideas like this. But if you go in with Glenn’s blazing on this Court and you identify yourself as a far-left version of a Justice Thomas, you’re not going to win one vote from the middle of that Court that you need to win to get to five votes.</p>
<p>And finally, it is just not—it’s just not the case that people coming from extremely important professions—for example, imagine a David Boies twenty years younger, who the President decides he wants to appoint because he thinks that we need somebody who has a good, practical understanding of the way litigation works. Well, such a person working inside of a law firm is literally not permitted to be articulating views about a wide range of issues that are not directly relevant to his or her practice. That was the case with Lewis Powell. Lewis Powell comes from practice. We didn’t know what his views were in a wide range of cases. That was the case with Whizzer White, with Justice Byron White, who again, we didn’t know his view in a wide range of cases, because he wasn’t in a position to be giving such a view.</p>
<p>Now we can’t—Glenn says we’re not against appointing non-judges. Well, if you adopt a standard that we can scream with outrage because he hasn’t—because a nominee has not written an op-ed on every single major issue that there is in constitutional law, then he is saying we cannot be appointing non-judges, because the number of non-judges who are going to be in that position, who are not crazies or extremists or, you know, people like me who can’t seem to stop himself from writing about everything there is to write about, the number of those people out there is three or four, and they’re not necessarily great Supreme Court justices. I think we have to recognize that we need a diversity. And the diversity that we need here right now is a practical judgment and ability to get four votes and turn them into five. And that’s something that, of all the skepticism that Glenn has raised, nobody has raised that skepticism, because there’s no basis for it.</p>
<p><b>Goodman:</b>I wanted to ask Glenn Greenwald, this issue of diversity, slightly different than what Professor Lessig is raising. A group of law professors have openly questioned Elena Kagan’s diversity record at Harvard when she was the dean of the law school. During her time there, Kagan made thirty-two tenured and tenure-track academic hires. Of these thirty-two, only one was a person of color, only seven were women. Your comment on this?</p>
<p><b>Greenwald:</b>Well, I’m going to defer to those law professors, because, number one, they’re tenured law professors at major law schools around the country and know, in and out, how the mechanics of hiring work, and secondly, they’re people who have devoted their careers to advocating for diversity, of the kind that the progressive community, and even the Democratic Party generally, has always had as a plank in its mainstream platform. And what they said is that if you look at Elena Kagan’s record as dean—and the hiring that she did is one of the things that is touted as proof that she’s able to bridge the communities and make conservatives like her—they called it, quote, “abysmal,” “indefensible for the twenty-first century” and “shocking” at how overwhelmingly white and male those hires were. Thirty-one out of thirty-two law professors who received tenure positions while at Harvard during her dean—tenure as dean were white. Now, I think that that is an issue that needs to be explored, and I’m going to leave it to those professors and other advocates, who know those issues better than I do and who have been dealing with them their whole careers, to raise those questions.</p>
<p>And, you know, the thing—let me just say this, which is, you know, you just heard in Professor Lessig’s answer to my question, I think, a lot of evidence about how you can’t know where Elena Kagan would fall on any of these positions. And in terms of this ability—and it relates to what you just asked me, Amy—to bridge the gap, the ideological gap on the Court, to know that, you would first have to know what her perspective is. Is she going to be agreeing with the liberal wing on these issues? He has no evidence that she will on these great issues. And secondly, there were judges and other people who have a history of crafting legal opinions that can attract conservative judges. That was the reason why I favor Judge Diane Wood. The fact that Elena Kagan at Harvard hired a bunch of right-wing professors and therefore made conservatives like her, that was a good thing she did, but that’s hardly evidence that once she gets on the Supreme Court she is going to be able to craft legal opinions that will attract conservative judges.</p>
<p>And I think underlying all of this is—you know, this is what I said after President Obama finally nominated her. I mean, I had been arguing against her nomination. But once he nominated her, I wrote that, you know, now that she’s nominated, the key thing is to learn as much as we can about her. And the thing that—one of the things I found most favorable about her was that in 1995 she wrote a very strong law review article condemning the nomination process as a vapid and hollow charade and said that it is imperative that nominees to the Supreme Court answer very specific questions about what their opinions are on cases and how they would approach the law. And I wrote that we should all keep an open mind and hope that she adheres to those standards.</p>
<p>Apparently, she says now that she’s changed her mind on that. She said that at her solicitor general confirmation hearing. The White House yesterday said she no longer believes that, that she’ll adhere to the conventions of the nomination process, which, by design, obfuscate what the nominee is, rather than illuminate what they are and how they think. And I think we’re not going to really end up learning any of the answers to these questions. And I wonder if Professor Lessig agrees that Dean Kagan—or Solicitor General Kagan ought to adhere to what she said in 1995 about a nominee’s obligations to answer these questions so that we can make an informed judgment.</p>
<p><b>Goodman:</b>Well, Professor Lessig, answer that, and then go back to this issue of diversity. Presumably, you were one of those Harvard law professors who she brought to Harvard Law School during that time. But your response to the lack of diversity?</p>
<p><b>Lessig:</b>Yeah, well, let me address the diversity issue. It’s good—I appreciate the respect that Glenn gives to law professors. I am a law professor, a tenured law professor. Let me tell you, law professors can be extraordinarily sloppy. And the analysis that was made of Elena’s, quote, “hiring record” is extraordinarily sloppy. The relevant question is, who are the people in the comparable institutions that were hired by Stanford or by Yale, who are minority or women, who Harvard did not make offers to and Elena didn’t try to persuade to come. And there just are no people in this list or no people that would support—no numbers that would support the basis to draw a suggestion that in some sense she’s being biased in her judgment.</p>
<p>In fact, while she was at the Harvard Law School, she launched one of the most aggressive programs to recruit young scholars into the teaching profession, in particular, in areas of civil rights. She launched a civil rights teaching program to bring people in and to give them the experience necessary to make it possible for them to become teachers. Now, that kind of experience is why people on all sides—this is not a law school where the conservatives love her; this is a law school where everybody in the law school, except one or two people who are known for their cantankerousness, love her, because she demonstrated that kind of commitment. And so, I think the sloppy analysis of a couple law professors that look at raw numbers, rather than actual figuring out what happened, shouldn’t weigh in here.</p>
<p>Now, I would love to have Elena’s honest views reported to the world, because, you know, again, my position is not that we should trust her views. I know her views. So I’m happy with her views. And I would be happy if everybody could see them. And I think I’d be extraordinary pleased if Glenn Greenwald would be in the position where he could see them, too, because I think he’s going to be pleasantly surprised, as well. But, you know, let’s be realistic about this. You know, we’re not living in a vacuum. I know we live in the Facebook generation where everybody thinks they can just put everything out in the world and there is no consequence, but in Washington there is an extraordinary consequence. And we liberals shouldn’t be so stupid about how we play the game, that every single thing we try to advance gets defeated by the obvious pattern of stalling and destruction that has become the character of the game in Washington. So if the White House makes a judgment about what the appropriate amount of discussion here is and can point back to examples of justices who stonewalled in exactly the same way—and my former justice, Justice Scalia, being the best example, refusing even to say whether he believed that <i>Marbury v. Madison</i>, the case that gave the Supreme Court the authority to strike down laws, was good law—I think that those kind of political judgments about how to navigate this process are judgments that are going to control. But I share Glenn’s desire that we know more. I shared Elena’s view in 1995 that we ought to know more. But we ought to actually be living in a political system where people can speak honestly about their views without them being taken out of context and misused. And I think, in this particular debate, we’ve seen a lot of that.</p>
<p><b>Goodman:</b>Professor Lessig, there have been some memos that have come out of the Clinton archive now. This is from Politico, a ‘98 memo showing that Elena Kagan was among advisers encouraging Clinton to deny Medicare funding for abortions in cases of rape or incest, in part to avoid a messy battle with Republicans. At the time, Medicare rules covered abortion only where the mother’s life was in danger, and women’s groups and the Department of Health and Human Services wanted to expand the coverage. Also, the Associated Press revealed on Monday that in 1997 Kagan urged then-President Clinton to support a ban on late-term abortions at the time she was a White House adviser, an adviser to President Clinton. Your response to both of those?</p>
<p><b>Lessig:</b>Yeah, and again, I think we have to recognize that people have a job, and the job is related to the person they’re working for. You know, God forbid that my memos to my justice, Justice Scalia, when I was a clerk, would come out and people would use them as a way to understand what my view of the law was. When I worked for Justice Scalia, my job was to craft arguments that would advance his view of the law, recognizing that he was the person who the president had nominated and then the Senate had confirmed, and I wasn’t that person. And in the same context, when you’re working as a presidential adviser to somebody like President Clinton, your objective is to advance President Clinton’s political agenda. There wasn’t a question about whether this is what the Supreme Court should view as legal or not. Those issues were off the table in this context. The question was, what was the political agenda? Now, the politics of President Clinton are different from the judgment about what the Constitution requires. And my confidence is about her ability to make a judgment about what the Constitution requires, not whether she’s a good political adviser to a president who happened to be in office ten years ago.</p>
<p><b>Goodman:</b>Glenn Greenwald, your response? I think the White House is calling her a pragmatic progressive.</p>
<p><b>Greenwald:</b>Well, of course, that’s what Barack Obama’s defenders call him, and look at some of the policies that this, quote-unquote, “pragmatism” has led to: a continuation of numerous Bush-Cheney policies of the most radical and controversial kind. And so, I tend to try and avoid these labels, and “pragmatism” is a term that Obama loyalists use to justify virtually anything and everything that somebody ends up articulating, even if it’s bad. “Well, that might be bad, but they’re being pragmatic.”</p>
<p>But I think, you know, really what this underscores is, look at how those memos just suddenly surfaced and shed new light on Elena Kagan. And perhaps there are good explanations for why she advocated positions that are very anathema to the Democratic Party’s position on these issues. Maybe they don’t relate to how she approaches judging. Maybe they do. And it underscores the huge question mark that is Elena Kagan.</p>
<p>And look, I respect Larry Lessig a lot, and if he says, in his judgment, after knowing her for twenty years, that she would make a good Supreme Court justice, that’s something people ought to listen to. But it’s certainly not sufficient, or even remotely sufficient, to make an informed judgment. I mean, if you know someone for twenty years, they generally advocate for you and have an opportunity to get to know you. That’s just human nature. But a citizen has to see evidence before putting someone on the Court for thirty to forty years, especially someone who could move the Court substantially to the right. And we simply don’t have anything beyond little snippets to let us know what kind of judge she would be, and that will continue to be disturbing to any rational person.</p>
<p><b>Goodman:</b>Ten seconds to each of you. Final comment, Professor Lessig?</p>
<p><b>Lessig:</b>Well, Glenn knows that he and I have been allies in criticizing the President for his, quote, "pragmatism,” and so there’s no disagreement here about the President’s mistake in some context. But again, we need to be realistic. If we had a person who plainly marked themselves as a far-left version of Justice Thomas, that person, even if confirmed, would not succeed in getting us the five votes that we need to win on important issues. </p> <!-- All divs have been put onto one line because of whitespace issues when rendered inline in browsers -->
<div class="field field-name-field-bio field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even"> <!--smart_paging_autop_filter-->Amy Goodman is the host of the nationally syndicated radio news program, <a href="http://democracynow.org">Democracy Now!</a>.
Glenn Greenwald is a Constitutional law attorney and chief blogger at <a href="http://www.glenngreenwald.blogspot.com">Unclaimed Territory</a>. His forthcoming book, <a href="http://www.amazon.com/gp/product/097794400X/sr=8-1/qid=1144875908/ref=pd_bbs_1/103-2353391-0014250?%5Fencoding=UTF8"><i>How Would a Patriot Act: Defending American Values from a President Run Amok</i></a> will be released by <a href="http://www.workingassets.com/publishing">Working Assets Publishing</a> next month. </div></div></div>Wed, 12 May 2010 17:00:01 -0700Amy Goodman, Glenn Greenwald, Lawrence Lessig, Democracy Now!662217 at https://www.alternet.orgHuman RightsNews & PoliticsHuman Rightssupreme courtglenn greenwaldlawrence lessigelena kaganThe Democrats' Response to Citizens United: Not Even Close to Good Enoughhttps://www.alternet.org/story/145684/the_democrats%27_response_to_citizens_united%3A_not_even_close_to_good_enough
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<div class="field field-name-field-teaser field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">None of the Democrats&#039; puny proposals come close to addressing the growing corruption of democracy in America.</div></div></div><!-- All divs have been put onto one line because of whitespace issues when rendered inline in browsers -->
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<!--smart_paging_autop_filter--><p>The Democratic Leadership in Congress announced its response to the Supreme Court's decision in Citizens United last week. Their plan builds upon "talking points" released by the President shortly after his State of the Union, describing his strategy for "cracking down on special interests" in light of the new threat created by the Court. "For too long," the White House wrote, "hardworking folks doing everything they can do to stay afloat have not been heard over the powerful voices of the special interests and their lobbyists in Washington." The Leadership and the President want to do something about this.<a href="http://skitch.com/lessig/nim7j/graph.002"><br /></a></p>
<p>Some numbers will put this issue in perspective. Candidates for Congress raised $1.2 billion in the 2008 campaign cycle. 10% of that came from contributions of $200 or less. In 2009, the Center for Responsive Politics reports, the total spent on lobbying in Washington climbed to the highest level in American history: $3.47 billion in total were spent wooing Congress, with just over $1 billion by the health and financial services sector alone. 1.3% of that total came from organized labor. And having now been liberated by the Supreme Court to spend corporate funds to promote or oppose any political candidate, many fear the skew in these numbers will only increase. If the top 400 American corporations in 2008 spent just 1% of their profits in political campaigns, that would be $6 billions -- 5x the total amount spent in the 2008 cycle, almost 50x the amount contributed in $200 contributions or less.</p>
<p>So against this background of profound distortion in the political speech market, what have the Democrats proposed? A handful of puny measures, none which will come close to addressing this growing corruption of democracy in America -- a democracy less and less dependent, as the Federalist Papers promised, "upon the People," and more and more dependent upon the campaign funders.</p>
<p>The Democratic Leadership's response is a mix of dubious effectiveness and obvious constitutional doubt. Two of the five proposals require more disclosure by corporations of campaign spending; two purport to ban speech from disfavored groups (foreigners, and government contractors); and one aims to regulate the price of television ads for political speech.</p>
<p>But the Supreme Court has already signaled the uncertain power of Congress to control prices in this (in their view at least, increasingly competitive) speech market. And it is unlikely the Court will look favorably at a broad ban on government contractors speaking, especially when that ban is a response to its own ruling. And finally it is completely unclear how foreigners get regulated under the Court's reasoning in Citizens United: the whole point of that Court's rule was that the First Amendment didn't care about who the target of speech regulation was; whether person or not, the government was not allowed to "abridge the freedom of speech." Why that rule would be different when the entity silenced is French rather than corporate is completely obscure.</p>
<p>The White House response is not much better. It first points hopefully in the direction of Congress to "fix the damage done by Citizens United." But that hope, as I've just suggested, is disappointment. It then vaguely proposes to "limit contributions and bundling by lobbyists." But the "talking points" don't begin to explain why the Court will allow lobbyist speech to be regulated so differently from the speech of the rest of us; nor how banning the act of collecting other people's checks to give to Members of Congress will withstand a Supreme Court increasingly blind to anything but the crudest forms of corruption. Finally, the administration sprinkles more disclosure into the mix, promising tough new rules for lobbyists (as if an even clearer report from the brilliant Center for Responsive Politics would magically make Congress more responsive), and for earmarks (as if a URL were corruption's kryptonite). But transparency has increased radically over the past decade. Has responsibility and trust in government?</p>
<p>Most promising in the White House briefing is the mention of the word "public finance system." But the White House is not proposing public financing for congressional elections. It promises only to reform the presidential public financing system. But that begs the obvious question: Does the administration believe the problem in American government is the presidency? Does Obama think "hardworking folks doing everything they can do to stay afloat have not been heard over the powerful voices of the special interests and their lobbyists in Washington" because there's too much private interest controlling his administration?</p>
<p>Both branches of our government have betrayed astonishingly weak leadership in addressing this threat to representative democracy. The institution of Congress is politically bankrupt. The public's trust is at an historic low. Reform from both the Right and the Left gets stalled in this first branch because the machine selling public policy -- the evolved system of lobbying in America -- has almost perfected its power to protect the status quo. Nothing changes regardless of which side is elected because the value of preserving what is is always enough to block that change.</p>
<p>The only way to change this would be a system of small dollar, <a href="http://fixcongressfirst.com/">citizen funded elections</a>. If Members were no longer dependent upon funding by special interests, they could begin to worry about what their constituents want, and not the wants of their funders. The Fair Elections Now Act, co-sponsored by John Larson (D-CT) and Walter Jones (R-NC) (and 133 other co-sponsors) would be a first step to that change. It is the obvious step that anyone serious about curing the pathology that is Washington would take. Yet it remains no where on the list of priorities for the Democrats -- which may ultimately be the reason reformers will need to push for <a target="_hplink" href="http://callaconvention.org/">a constitutional convention</a>.</p>
<p>In 1996, Stride Rite founder Arnold Hiatt tried to inspire then President Bill Clinton to make it a priority for the Democrats of that day. Hiatt was then the number-two largest contributor to Democratic candidates He was invited to a White House dinner with 30 other large funders so that the President could try to persuade them to help retire the Party's 1996 campaign debt. Each guest was asked to give the President his or her advice for the next four years. Hiatt was the last to speak.</p>
<p>He began by evoking Franklin Roosevelt, whom Clinton, Hiatt knew, admired greatly. In 1939, Hiatt reminded the assembled funders, Roosevelt worked hard to convince a reluctant nation to enter a war to save democracy. This, Hiatt insisted, was just what Bill Clinton had to do again -- to convince a reluctant nation to enter a war to save democracy. But this war would require no tanks or battleships. It would instead be the war to end private funding of public elections, to enact full funding for congressional elections, so that Americans would no longer believe as the vast majority even then believed that money buys results in Washington. It would be a war against interests that had corrupted the democratic process in America; a war against the very interest sitting in that room with Clinton.</p>
<p>When Hiatt finished, the room was silent. And the only published account of that evening reports a President impatient with his reformer-funder. Clinton, one guest that evening recounts, "effectively slashed Hiatt to pieces." "The president put this guy down so unbelievably. He didn't even do it graciously. He just took Arnold and phooom, like he would some junior aide who had made a really dumb mistake." Hiatt doesn't remember Clinton being that harsh, but he does recall feeling like a "skunk at a lawn party."</p>
<p>It's not clear that Clinton ever had the aspiration to be a transformational president like FDR. But that was precisely what Obama promised to be. And almost 15 years after Hiatt's challenge, it is finally time for the Democrats to listen. It is time to convince a (not very) reluctant nation to take up the fight to save democracy. Not by these puny measures proposed by staffers who can see no further than last night's tracking poll. But by leaders who understand that history bends to the vision leaders teach.</p> <!-- All divs have been put onto one line because of whitespace issues when rendered inline in browsers -->
<div class="field field-name-field-bio field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even"> <!--smart_paging_autop_filter--> </div></div></div>Mon, 15 Feb 2010 21:00:01 -0800Lawrence Lessig, Change Congress661045 at https://www.alternet.orgNews & PoliticsNews & PoliticscongressOur Democracy No Longer Works and the Problem Is Congresshttps://www.alternet.org/story/145595/our_democracy_no_longer_works_and_the_problem_is_congress
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<div class="field field-name-field-teaser field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">At the center of our government lies a bankrupt institution: Congress. The US Congress has become the Fundraising Congress.</div></div></div><!-- All divs have been put onto one line because of whitespace issues when rendered inline in browsers -->
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<!--smart_paging_autop_filter--><p>We should remember what it felt like one year ago, as the ability to recall it emotionally will pass and it is an emotional memory as much as anything else. It was a moment rare in a democracy's history. The feeling was palpable--to supporters and opponents alike--that something important had happened. America had elected, the young candidate promised, a transformational president. And wrapped in a campaign that had produced the biggest influx of new voters and small-dollar contributions in a generation, the claim seemed credible, almost intoxicating, and just in time. <!-- /end .blurb --><!-- /end .blurb --><!-- /end .tn-sections --></p>
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<p>Yet a year into the presidency of Barack Obama, it is already clear that this administration is an opportunity missed. Not because it is too conservative. Not because it is too liberal. But because it is too conventional. Obama has given up the rhetoric of his early campaign--a campaign that promised to "challenge the broken system in Washington" and to "fundamentally change the way Washington works." Indeed, "fundamental change" is no longer even a hint.</p>
<p>Instead, we are now seeing the consequences of a decision made at the most vulnerable point of Obama's campaign--just when it seemed that he might really have beaten the party's presumed nominee. For at that moment, Obama handed the architecture of his new administration over to a team that thought what America needed most was another Bill Clinton. A team chosen by the brother of one of DC's most powerful lobbyists, and a White House headed by the quintessential DC politician. A team that could envision nothing more than the ordinary politics of Washington--the kind of politics Obama had called "small." A team whose imagination--politically--is tiny.</p>
<p>These tiny minds--brilliant though they may be in the conventional game of DC--have given up what distinguished Obama's extraordinary campaign. Not the promise of healthcare reform or global warming legislation--Hillary Clinton had embraced both of those ideas, and every other substantive proposal that Obama advanced. Instead, the passion that Obama inspired grew from the recognition that something fundamental had gone wrong in the way our government functions, and his commitment to reform it.</p>
<p>For Obama once spoke for the anger that has now boiled over in even the blue state Massachusetts--that our government is corrupt; that fundamental change is needed. As he told us, both parties had allowed "lobbyists and campaign contributions to rig the system." And "unless we're willing to challenge [that] broken system...nothing else is going to change." "The reason" Obama said he was "running for president [was] to challenge that system." For "if we're not willing to take up that fight, then real change--change that will make a lasting difference in the lives of ordinary Americans--will keep getting blocked by the defenders of the status quo."</p>
<p>This administration has not "taken up that fight." Instead, it has stepped down from the high ground the president occupied on January 20, 2009, and played a political game no different from the one George W. Bush played, or Bill Clinton before him. Obama has accepted the power of the "defenders of the status quo" and simply negotiated with them. "Audacity" fits nothing on the list of last year's activity, save the suggestion that this is the administration the candidate had promised.</p>
<p>Maybe this was his plan all along. It was not what he said. And by ignoring what he promised, and by doing what he attacked ("too many times, after the election is over, and the confetti is swept away, all those promises fade from memory, and the lobbyists and the special interests move in"), Obama will leave the presidency, whether in 2013 or 2017, with Washington essentially intact and the movement he inspired betrayed.</p>
<p>That movement needs new leadership. On the right (the tea party) and the left (MoveOn and Bold Progressives), there is an unstoppable recognition that our government has failed. But both sides need to understand the source of its failure if either or, better, both together, are to respond.</p>
<p>At the center of our government lies a bankrupt institution: Congress. Not financially bankrupt, at least not yet, but politically bankrupt. <i>Bush v. Gore</i> notwithstanding, Americans' faith in the Supreme Court remains extraordinarily high--76 percent have a fair or great deal of "trust and confidence" in the Court. Their faith in the presidency is also high--61 percent.</p>
<p>But consistently and increasingly over the past decade, faith in Congress has collapsed--slowly, and then all at once. Today it is at a record low. Just 45 percent of Americans have "trust and confidence" in Congress; just 25 percent approve of how Congress is handling its job. A higher percentage of Americans likely supported the British Crown at the time of the Revolution than support our Congress today.</p>
<p>The source of America's cynicism is not hard to find. Americans despise the inauthentic. Gregory House, of the eponymous TV medical drama, is a hero not because he is nice (he isn't) but because he is true. Tiger Woods is a disappointment not because he is evil (he isn't) but because he proved false. We may want peace and prosperity, but most would settle for simple integrity. Yet the single attribute least attributed to Congress, at least in the minds of the vast majority of Americans, is just that: integrity. And this is because most believe our Congress is a simple pretense. That rather than being, as our framers promised, an institution "dependent on the People," the institution has developed a pathological dependence on campaign cash. The US Congress has become the Fundraising Congress. And it answers--as Republican and Democratic presidents alike have discovered--not to the People, and not even to the president, but increasingly to the relatively small mix of interests that fund the key races that determine which party will be in power.</p>
<p>This is corruption. Not the corruption of bribes, or of any other crime known to Title 18 of the US Code. Instead, it is a corruption of the faith Americans have in this core institution of our democracy. The vast majority of Americans believe money buys results in Congress (88 percent in a recent California poll). And whether that belief is true or not, the damage is the same. The democracy is feigned. A feigned democracy breeds cynicism. Cynicism leads to disengagement. Disengagement leaves the fox guarding the henhouse.</p>
<p>This corruption is not hidden. On the contrary, it is in plain sight, with its practices simply more and more brazen. Consider, for example, the story Robert Kaiser tells in his fantastic book <i>So Damn Much Money</i>, about Senator John Stennis, who served for forty-one years until his retirement in 1989. Stennis, no choirboy himself, was asked by a colleague to host a fundraiser for military contractors while he was chair of the Armed Services Committee. "Would that be proper?" Stennis asked. "I hold life and death over those companies. I don't think it would be proper for me to take money from them."</p>
<p>Is such a norm even imaginable in DC today? Compare Stennis with Max Baucus, who has gladly opened his campaign chest to $3.3 million in contributions from the healthcare and insurance industries since 2005, a time when he has controlled healthcare in the Senate. Or Senators Lieberman, Bayh and Nelson, who took millions from insurance and healthcare interests and then opposed the (in their states) popular public option for healthcare. Or any number of Blue Dog Democrats in the House who did the same, including, most prominently, Arkansas's Mike Ross. Or Republican John Campbell, a California landlord who in 2008 received (as ethics reports indicate) between $600,000 and $6 million in rent from used car dealers, who successfully inserted an amendment into the Consumer Financial Protection Agency Act to exempt car dealers from financing rules to protect consumers. Or Democrats Melissa Bean and Walter Minnick, who took top-dollar contributions from the financial services sector and then opposed stronger oversight of financial regulations.</p>
<p>The list is endless; the practice open and notorious. Since the time of Rome, historians have taught that while corruption is a part of every society, the only truly dangerous corruption comes when the society has lost any sense of shame. Washington has lost its sense of shame.</p>
<p>As fundraising becomes the focus of Congress--as the parties force members to raise money for other members, as they reward the best fundraisers with lucrative committee assignments and leadership positions--the focus of Congressional "work" shifts. Like addicts constantly on the lookout for their next fix, members grow impatient with anything that doesn't promise the kick of a campaign contribution. The first job is meeting the fundraising target. Everything else seems cheap. Talk about policy becomes, as one Silicon Valley executive described it to me, "transactional." The perception, at least among industry staffers dealing with the Hill, is that one makes policy progress only if one can promise fundraising progress as well.</p>
<p>This dance has in turn changed the character of Washington. As Kaiser explains, Joe Rothstein, an aide to former Senator Mike Gravel, said there was never a "period of pristine American politics untainted by money.... Money has been part of American politics forever, on occasion--in the Gilded Age or the Harding administration, for example--much more blatantly than recently." But "in recent decades 'the scale of it has just gotten way out of hand.' The money may have come in brown paper bags in earlier eras, but the politicians needed, and took, much less of it than they take through more formal channels today."</p>
<p>And not surprisingly, as powerful interests from across the nation increasingly invest in purchasing public policy rather than inventing a better mousetrap, wealth, and a certain class of people, shift to Washington. According to the 2000 Census, fourteen of the hundred richest counties were in the Washington area. In 2007, nine of the richest twenty were in the area. Again, Kaiser: "In earlier generations enterprising young men came to Washington looking for power and political adventure, often with ambitions to save or reform the country or the world. In the last fourth of the twentieth century such aspirations were supplanted by another familiar American yearning: to get rich."</p>
<p>Rich, indeed, they are, with the godfather of the lobbyist class, Gerald Cassidy, amassing more than $100 million from his lobbying business.</p>
<p>Members of Congress are insulted by charges like these. They insist that money has no such effect. Perhaps, they concede, it buys access. (As former Representative Romano Mazzoli put it, "People who contribute get the ear of the member and the ear of the staff. They have the access--and access is it.") But, the cash-seekers insist, it doesn't change anyone's mind. The souls of members are not corrupted by private funding. It is simply the way Americans go about raising the money necessary to elect our government.</p>
<p>But there are two independent and adequate responses to this weak rationalization for the corruption of the Fundraising Congress. First: whether or not this money has corrupted anyone's soul--that is, whether it has changed any vote or led any politician to bend one way or the other--there is no doubt that it leads the vast majority of Americans to believe that money buys results in Congress. Even if it doesn't, that's what Americans believe. Even if, that is, the money doesn't corrupt the soul of a single member of Congress, it corrupts the institution--by weakening faith in it, and hence weakening the willingness of citizens to participate in their government. Why waste your time engaging politically when it is ultimately money that buys results, at least if you're not one of those few souls with vast sums of it?</p>
<p>"But maybe," the apologist insists, "the problem is in what Americans believe. Maybe we should work hard to convince Americans that they're wrong. It's understandable that they believe money is corrupting Washington. But it isn't. The money is benign. It supports the positions members have already taken. It is simply how those positions find voice and support. It is just the American way."</p>
<p>Here a second and completely damning response walks onto the field: if money really doesn't affect results in Washington, then what could possibly explain the fundamental policy failures--relative to every comparable democracy across the world, whether liberal or conservative--of our government over the past decades? The choice (made by Democrats and Republicans alike) to leave unchecked a huge and crucially vulnerable segment of our economy, which threw the economy over a cliff when it tanked (as independent analysts again and again predicted it would). Or the choice to leave unchecked the spread of greenhouse gases. Or to leave unregulated the exploding use of antibiotics in our food supply--producing deadly strains of <i>E. coli</i>. Or the inability of the twenty years of "small government" Republican presidents in the past twenty-nine to reduce the size of government at all. Or... you fill in the blank. From the perspective of what the People want, or even the perspective of what the political parties say they want, the Fundraising Congress is misfiring in every dimension. That is either because Congress is filled with idiots or because Congress has a dependency on something other than principle or public policy sense. In my view, Congress is not filled with idiots.</p>
<p>The point is simple, if extraordinarily difficult for those of us proud of our traditions to accept: this democracy no longer works. Its central player has been captured. Corrupted. Controlled by an economy of influence disconnected from the democracy. Congress has developed a dependency foreign to the framers' design. Corporate campaign spending, now liberated by the Supreme Court, will only make that dependency worse. "A dependence" not, as the Federalist Papers celebrated it, "on the People" but a dependency upon interests that have conspired to produce a world in which policy gets sold.</p>
<p>No one, Republican or Democratic, who doesn't currently depend upon this system should accept it. No president, Republican or Democratic, who doesn't change this system could possibly hope for any substantive reform. For small-government Republicans, the existing system will always block progress. There will be no end to extensive and complicated taxation and regulation until this system changes (for the struggle over endless and complicated taxation and regulation is just a revenue opportunity for the Fundraising Congress). For reform-focused Democrats, the existing system will always block progress. There will be no change in fundamental aspects of the existing economy, however inefficient, from healthcare to energy to food production, until this political economy is changed (for the reward from the status quo to stop reform is always irresistible to the Fundraising Congress). In a single line: there will be no change until we change Congress.</p>
<p>That Congress is the core of the problem with American democracy today is a point increasingly agreed upon by a wide range of the commentators. But almost universally, these commentators obscure the source of the problem.</p>
<p>Some see our troubles as tied to the arcane rules of the institution, particularly the Senate. Ezra Klein of the <i>Washington Post</i>, for example, has tied the failings of Congress to the filibuster and argues that the first step of fundamental reform has got to be to fix that. Tom Geoghegan made a related argument in these pages in August, and the argument appears again in this issue. (Of course, these pages were less eager to abolish the filibuster when the idea was floated by the Republicans in 2005, but put that aside.)</p>
<p>These arguments, however, miss a basic point. Filibuster rules simply set the price that interests must pay to dislodge reform. If the rules were different, the price would no doubt be higher. But a higher price wouldn't change the economy of influence. Indeed, as political scientists have long puzzled, special interests underinvest in Washington relative to the potential return. These interests could just as well afford to assure that fifty-one senators block reform as forty.</p>
<p>Others see the problem as tied to lobbyists--as if removing lobbyists from the mix of legislating (as if that constitutionally could be done) would be reform enough to assure that legislation was not corrupted.</p>
<p>But the problem in Washington is not lobbying. The problem is the role that lobbyists have come to play. As John Edwards used to say (when we used to quote what Edwards said), there's all the difference in the world between a lawyer making an argument to a jury and a lawyer handing out $100 bills to the jurors. That line is lost on the profession today. The profession would earn enormous credibility if it worked to restore it.</p>
<p>Finally, some believe the problem of Congress is tied to excessive partisanship. Members from an earlier era routinely point to the loss of a certain civility and common purpose. The game as played by both parties seems more about the parties than about the common good.</p>
<p>But it is this part of the current crisis that the dark soul in me admires most. There is a brilliance to how the current fraud is sustained. Everyone inside this game recognizes that if the public saw too clearly that the driving force in Washington is campaign cash, the public might actually do something to change that. So every issue gets reframed as if it were really a question touching some deep (or not so deep) ideological question. Drug companies fund members, for example, to stop reforms that might actually test whether "me too" drugs are worth the money they cost. But the reforms get stopped by being framed as debates about "death panels" or "denying doctor choice" rather than the simple argument of cost-effectiveness that motivates the original reform. A very effective campaign succeeds in obscuring the source of conflict over major issues of reform with the pretense that it is ideology rather than campaign cash that divides us.</p>
<p>Each of these causes is a symptom of a more fundamental disease. That disease is improper dependency. Remove the dependency, and these symptoms become--if not perfectly then at least much more--benign.</p>
<p>As someone who has known Obama vaguely for almost twenty years--he was my colleague at the University of Chicago, and I supported and contributed to every one of his campaigns--I would have bet my career that he understood this. That's what he told us again and again in his campaign, not as colorfully as Edwards, but ultimately more convincingly. That's what distinguished him from Hillary Clinton. That's what Clinton, defender of the lobbyists, didn't get. It was "fundamentally chang[ing] the way Washington works" that was the essential change that would make change believable.</p>
<p>So if you had told me in 2008 that Obama expected to come to power and radically remake the American economy--as his plans to enact healthcare and a response to global warming alone obviously would--without first radically changing this corrupted machinery of government, I would not have believed it. Who could believe such a change possible, given the economy of influence that defines Washington now?</p>
<p>Yet a year into this administration, it is impossible to believe this kind of change is anywhere on the administration's radar, at least anymore. The need to reform Congress has left Obama's rhetoric. The race to dicker with Congress in the same way Congress always deals is now the plan. Symbolic limits on lobbyists within the administration and calls for new disclosure limits for Congress are the sole tickets of "reform." (Even its revolving-door policy left a Mack truck-wide gap at its core: members of the administration can't leave the government and lobby for the industries they regulated during the term of the administration. But the day after Obama leaves office? All bets are off.) Save a vague promise in his State of the Union about overturning the Court's decision in <i>Citizens United v. Federal Election Commission</i> (as if that were reform enough), there is nothing in the current framework of the White House's plans that is anything more than the strategy of a kinder and gentler, albeit certainly more articulate, George W. Bush: buying reform at whatever price the Fundraising Congress demands. No doubt Obama will try to buy more reform than Bush did. But the terms will continue to be set by a Congress driven by a dependency that betrays democracy, and at a price that is not clear we can even afford.</p>
<p>Healthcare reform is a perfect example. The bill the Fundraising Congress has produced is miles from the reform that Obama promised ("Any plan I sign must include an insurance exchange...including a public option," July 19, 2009). Like the stimulus package, like the bank bailouts, it is larded with gifts to the most powerful fundraising interests--including a promise to drug companies to pay retail prices for wholesale purchases and a promise to the insurance companies to leave their effectively collusive (since exempt from anti-trust limitations) and extraordinarily inefficient system of insurance intact--and provides (relative to the promises) little to the supposed intended beneficiaries of the law: the uninsured. In this, it is the perfect complement to the only significant social legislation enacted by Bush, the prescription drug benefit: a small benefit to those who can't afford drugs, a big gift to those who make drugs and an astonishingly expensive price tag for the nation.</p>
<p>So how did Obama get to this sorry bill? The first step, we are told, was to sit down with representatives from the insurance and pharmaceutical industries to work out a deal. But why, the student of Obama's campaign might ask, were they the entities with whom to strike a deal? How many of the 69,498,516 votes received by Obama did they actually cast? "We have to change our politics," Obama said. Where is the change in this?</p>
<p>"People...watch," Obama told us in the campaign, "as every year, candidates offer up detailed healthcare plans with great fanfare and promise, only to see them crushed under the weight of Washington politics and drug and insurance industry lobbying once the campaign is over."</p>
<p>"This cannot," he said, "be one of those years."</p>
<p>It has been one of those years. And it will continue to be so long as presidents continue to give a free pass to the underlying corruption of our democracy: Congress.</p>
<p>There was a way Obama might have had this differently. It would have been risky, some might say audacious. And it would have required an imagination far beyond the conventional politics that now controls his administration.</p>
<p>No doubt, 2009 was going to be an extraordinarily difficult year. Our nation was a cancer patient hit by a bus on her way to begin chemotherapy. The first stages of reform thus had to be trauma care, at least to stabilize the patient until more fundamental treatment could begin.</p>
<p>But even then, there was an obvious way that Obama could have reserved the recognition of the need for this more fundamental reform by setting up the expectations of the nation forcefully and clearly. Building on the rhetoric at the core of his campaign, on January 20, 2009, Obama could have said:</p>
<p class="blockquote">America has spoken. It has demanded a fundamental change in how Washington works, and in the government America delivers. I commit to America to work with Congress to produce that change. But if we fail, if Congress blocks the change that America has demanded--or more precisely, if Congress allows the special interests that control it to block the change that America has demanded--then it will be time to remake Congress. Not by throwing out the Democrats, or by throwing out the Republicans. But by throwing out both, to the extent that both continue to want to work in the old way. If this Congress fails to deliver change, then we will change Congress.</p>
<p>Had he framed his administration in these terms, then when what has happened happened, Obama would be holding the means to bring about the obvious and critical transformation that our government requires: an end to the Fundraising Congress. The failure to deliver on the promises of the campaign would not be the failure of Obama to woo Republicans (the unwooable Victorians of our age). The failure would have been what America was already primed to believe: a failure of this corrupted institution to do its job. Once that failure was marked with a frame that Obama set, he would have been in the position to begin the extraordinarily difficult campaign to effect the real change that Congress needs.</p>
<p>I am not saying this would have been easy. It wouldn't have. It would have been the most important constitutional struggle since the New Deal or the Civil War. It would have involved a fundamental remaking of the way Congress works. No one should minimize how hard that would have been. But if there was a president who could have done this, it was, in my view, Obama. No politician in almost a century has had the demonstrated capacity to inspire the imagination of a nation. He had us, all of us, and could have kept us had he kept the focus high.</p>
<p>Nor can one exaggerate the need for precisely this reform. We can't just putter along anymore. Our government is, as Paul Krugman put it, "ominously dysfunctional" just at a time when the world desperately needs at least competence. Global warming, pandemic disease, a crashing world economy: these are not problems we can leave to a litter of distracted souls. We are at one of those rare but critical moments when a nation must remake itself, to restore its government to its high ideals and to the potential of its people. Think of the brilliance of almost any bit of the private sector--from Hollywood, to Silicon Valley, to MIT, to the arts in New York or Nashville--and imagine a government that reflected just a fraction of that excellence. We cannot afford any less anymore.</p>
<p>What would the reform the Congress needs be? At its core, a change that restores institutional integrity. A change that rekindles a reason for America to believe in the central institution of its democracy by removing the dependency that now defines the Fundraising Congress. Two changes would make that removal complete. Achieving just one would have made Obama the most important president in a hundred years.</p>
<p>That one--and first--would be to enact an idea proposed by a Republican (Teddy Roosevelt) a century ago: citizen-funded elections. America won't believe in Congress, and Congress won't deliver on reform, whether from the right or the left, until Congress is no longer dependent upon conservative-with-a-small-c interests--meaning those in the hire of the status quo, keen to protect the status quo against change. So long as the norms support a system in which members sell out for the purpose of raising funds to get re-elected, citizens will continue to believe that money buys results in Congress. So long as citizens believe that, it will.</p>
<p>Citizen-funded elections could come in a number of forms. The most likely is the current bill sponsored in the House by Democrat John Larson and Republican Walter Jones, in the Senate by Democrats Dick Durbin and Arlen Specter. That bill is a hybrid between traditional public funding and small-dollar donations. Under this Fair Elections Now Act (which, by the way, is just about the dumbest moniker for the statute possible, at least if the sponsors hope to avoid Supreme Court invalidation), candidates could opt in to a system that would give them, after clearing certain hurdles, substantial resources to run a campaign. Candidates would also be free to raise as much money as they want in contributions maxed at $100 per citizen.</p>
<p>The only certain effect of this first change would be to make it difficult to believe that money buys any results in Congress. A second change would make that belief impossible: banning any member of Congress from working in any lobbying or consulting capacity in Washington for seven years after his or her term. Part of the economy of influence that corrupts our government today is that Capitol Hill has become, as Representative Jim Cooper put it, a "farm league for K Street." But K Street will lose interest after seven years, and fewer in Congress would think of their career the way my law students think about life after law school--six to eight years making around $180,000, and then doubling or tripling that as a partner, where "partnership" for members of Congress means a comfortable position on K Street.</p>
<p>Before the Supreme Court's decision in <i>Citizens United v. FEC</i>, I thought these changes alone would be enough at least to get reform started. But the clear signal of the Roberts Court is that any reform designed to muck about with whatever wealth wants is constitutionally suspect. And while it would take an enormous leap to rewrite constitutional law to make the Fair Elections Now Act unconstitutional, <i>Citizens United</i> demonstrates that the Court is in a jumping mood. And more ominously, the market for influence that that decision will produce may well overwhelm any positive effect that Fair Elections produces.</p>
<p>This fact has led some, including now me, to believe that reform needs people who can walk and chew gum at the same time. Without doubt, we need to push the Fair Elections Now Act. But we also need to begin the process to change the Constitution to assure that reform can survive the Roberts Court. That constitutional change should focus on the core underlying problem: institutional independence. The economy of influence that grips Washington has destroyed Congress's independence. Congress needs the power to restore it, by both funding elections to secure independence and protecting the context within which elections occur so that the public sees that integrity.</p>
<p>No amendment would come from this Congress, of course. But the framers left open a path to amendment that doesn't require the approval of Congress--a convention, which must be convened if two-thirds of the states apply for it. Interestingly (politically) those applications need not agree on the purpose of the convention. Some might see the overturning of <i>Citizens United</i>. Others might want a balanced budget amendment. The only requirement is that two-thirds apply, and then begins the drama of an unscripted national convention to debate questions of fundamental law.</p>
<p>Many fear a convention, worrying that our democracy can't process constitutional innovation well. I don't share that fear, but in any case, any proposed amendment still needs thirty-eight states to ratify it. There are easily twelve solid blue states in America and twelve solid red states. No one should fear that change would be too easy.</p>
<p>No doubt constitutional amendments are politically impossible--just as wresting a republic from the grip of a monarchy, or abolishing slavery or segregation, or electing Ronald Reagan or Barack Obama was "politically impossible." But conventional minds are always wrong about pivot moments in a nation's history. Obama promised this was such a moment. The past year may prove that he let it slip from his hand.</p>
<p>For this, democracy pivots. It will either spin to restore integrity or it will spin further out of control. Whether it will is no longer a choice. Our only choice is how.</p>
<p>Imagine an alcoholic. He may be losing his family, his job and his liver. These are all serious problems. Indeed, they are among the worst problems anyone could face. But what we all understand about the dependency of alcoholism is that however awful these problems, the alcoholic cannot begin to solve them until he solves his first problem--alcoholism.</p>
<p>So too is it with our democracy. Whether on the left or the right, there is an endless list of critical problems that each side believes important. The Reagan right wants less government and a simpler tax system. The progressive left wants better healthcare and a stop to global warming. Each side views these issues as critical, either to the nation (the right) or to the globe (the left). But what both sides must come to see is that the reform of neither is possible until we solve our first problem first--the dependency of the Fundraising Congress.</p>
<p>This dependency will perpetually block reform of any kind, since reform is always a change in the status quo, and it is defense of the status quo that the current corruption has perfected. For again, as Obama said:</p>
<p class="blockquote">If we're not willing to take up that fight, then real change--change that will make a lasting difference in the lives of ordinary Americans--will keep getting blocked by the defenders of the status quo.</p>
<p>"Defenders of the status quo"--now including the souls that hijacked the movement Obama helped inspire.</p>
<p><i> Editors' Note: We encourage readers moved by this essay to <a linkindex="59" href="http://nitn.thenation.com/2010/02/03/sign-the-petition-to-change-congress-now/">sign the Change Congress petition</a>, a drive to enact solutions proposed in this article. <a linkindex="60" href="http://nitn.thenation.com/2010/02/03/sign-the-petition-to-change-congress-now/">Click here to sign</a>. A video commentary by Professor Lessig can be viewed <a linkindex="61" href="http://www.thenation.com/doc/20100222/lessig_video">here</a>. </i></p> <!-- All divs have been put onto one line because of whitespace issues when rendered inline in browsers -->
<div class="field field-name-field-bio field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even"> <!--smart_paging_autop_filter--> </div></div></div>Mon, 08 Feb 2010 21:00:01 -0800Lawrence Lessig, The Nation660959 at https://www.alternet.orgNews & PoliticsNews & Politicscongressdemocracycorruptionobama